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The value of R represents the relative examine the DRL issue if additional data information that becomes available odds of daytime target crashes is presented demonstrating overall concerning the status of, or threats to, involvements between DRL-equipped safety benefits. Any such study should the Lost River and shortnose suckers or vehicles and non-DRL vehicles. The consider using the ratio of odds ratios their habitat at any time. agency believes the ratio of odds ratio is technique as used in the latest NHTSA DATES: The finding announced in this the optimal method because it has a study, or provide compelling evidence document was made on June 29, 2009. strong confounding-factor-control that an alternative technique is superior You may submit new information ability. With regard to the previous at predicting the effectiveness of DRLs. concerning this species for our example, the ratio of odds ratios would In the meantime, the agency remains consideration at any time. factor in a higher expected crash rate for neutral with respect to a policy ADDRESSES: This finding is available on the vehicle driven 25 miles per day than regarding the inclusion of DRLs in the Internet at the vehicle driven five. vehicles. Although we do not find data http://www.regulations.gov and http:// The ratio of odds ratios avoids using that provides a definitive safety benefit www.fws.gov/klamathfallsfwo. crash rates because the true exposure that justifies Federal regulation, we are Supporting documentation we used in data generally do not exist. In GM’s not making recommendations that preparing this finding is available for case, with regard to the portion of the vehicle manufacturers should change public inspection, by appointment, study that utilized the ratio of crash their policies regarding DRLs. during normal business hours at the rates method, vehicle registrations were Manufacturers should continue to make Klamath Falls Fish and Wildlife Office, used as the exposure data. However, individual decisions regarding DRLs in U.S. Fish and Wildlife Service, 1936 registration data do not differentiate their vehicles. California Avenue, Klamath Falls, OR driving between DRL and non-DRL 97601; telephone (541) 885–8481; vehicles. They do not separate daytime Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166; delegation of authority at facsimile (541) 885–7837. Please send and nighttime driving. Consequently, 49 CFR 1.50. any new information, materials, vehicle registrations are not considered comments, or questions concerning this to be an appropriate exposure measure Issued: June 23, 2009. for a DRL study. The contradicting Nathaniel Beuse, finding to the above street address. results from the GM study demonstrate Director, Office of Crash Avoidance FOR FURTHER INFORMATION CONTACT: this. In contrast, the ratio of odds ratios Standards. Laurie Sada, Field Supervisor, U.S. Fish method compares the ratio of target [FR Doc. E9–15314 Filed 6–26–09; 8:45 am] and Wildlife Service, Klamath Falls Fish ADDRESSES crashes (DRL-relevant) to control BILLING CODE 4910–59–P and Wildlife Office (see ). crashes (non DRL-relevant) in the Persons who use a telecommunications daytime. device for the deaf (TDD) may call the The Steffey et al. study incorporated DEPARTMENT OF THE INTERIOR Federal Information Relay Service both of the methodologies in arriving at (FIRS) at (800) 877–8339, 24 hours a its conclusions. Using the ratio of crash Fish and Wildlife Service day, 7 days a week. rates method, the study found an overall SUPPLEMENTARY INFORMATION: decrease in crash rates of 4.61 percent, 50 CFR Part 17 Background which was noted as statistically 12 [FWS–R8–ES–2009–0040; 92220–1113– Section 4(b)(3)(A) of the Act (16 significant. However, using the ratio of 0000–C5] odds ratios method, the same report U.S.C. 1531 et seq.) requires that we found a non-significant decrease in the Endangered and Threatened Wildlife make a finding on whether a petition to crash rates of 1.36 percent.13 Given the and Plants; 90-Day Finding on a list, delist, or reclassify a species significant divergence in results from Petition To Delist the Lost River presents substantial scientific or the different methodologies, we feel that Sucker (Deltistes luxatus) and the commercial information indicating that the results from the ratio of crash rates Shortnose Sucker (Chasmistes the petitioned action may be warranted. methodology should be assigned less brevirostris) We are to base this finding on weight in NHTSA’s analysis of the information provided in the petition, safety effect of DRLs. AGENCY: Fish and Wildlife Service, supporting information submitted with Interior. the petition, and information otherwise V. Conclusion ACTION: Notice of 90-day petition available in our files at the time we The agency’s 2008 DRL study is a finding. make the determination. To the more robust study than previous maximum extent practicable, we are to attempts by the agency to quantify the SUMMARY: We, the U.S. Fish and make this finding within 90 days of our effectiveness of DRLs. This newest Wildlife Service (Service), announce a receipt of the petition, and publish our study was unable to find solid evidence 90-day finding on a petition to remove notice of the finding promptly in the of overall safety benefits associated with the Lost River sucker (Deltistes luxatus) Federal Register. DRLs installed on passenger vehicles and the shortnose sucker (Chasmistes This finding is based on the using the ratio of odds ratio statistical brevirostris) from the Federal List of information included in and with the technique. While DRLs may be Threatened and Endangered Wildlife petition and information available in beneficial for certain scenarios, the (List) under the Endangered Species Act our files at the time of the petition agency has been unable to document of 1973, as amended (Act). We find that review. Under section 4(b)(3)(A) of the overall safety benefits due to DRL the petition does not present substantial Act and our regulations at 50 CFR installation which could serve as a basis scientific or commercial information 424.14(b), our review is limited to a for mandating them. NHTSA is therefore indicating that removing the Lost River determination of whether the denying this petition from GM. sucker or shortnose sucker from the List information in the petition meets the However, the agency is willing to re- may be warranted. Therefore, we will ‘‘substantial scientific or commercial not initiate a status review for either information’’ threshold. Our standard 12 Steffey et al., p. 34. species in response to this petition. We for substantial information with regard 13 Steffey et al., p. 38. ask the public to submit to us any new to a 90-day petition finding is ‘‘that

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amount of information that would lead These three petitions were from Mr. Leo court dismissed the plaintiffs’ a reasonable person to believe that the Bergeron, Mr. James L. Buchal, and Ms. complaint, holding that 5-year reviews measure proposed in the petition may Naomi Fletcher. On May 14, 2002, the do not constitute final agency action be warranted’’ (50 CFR 424.14(b)). In Service published a 90-day finding subject to judicial review. making this finding, we consider stating that the petitions to delist the Species Information whether the petition: (1) Clearly Lost River and shortnose suckers did indicates the administrative action not present substantial scientific or General Biology recommended; (2) contains a detailed commercial information indicating that Lost River sucker. Lost River suckers narrative justification for the delisting the suckers may be warranted are large fish (up to 1 meter (m) long recommended measure, describing, (67 FR 34422). On June 12, 2002, Walt and 4.5 kilograms (kg) in weight) that based on available information, past and Moden, Merle Carpenter, Charles are distinguished by their elongate body present numbers and distribution of the Whitlatch, John Blair, Tiffany Bladock, and sub-terminal mouth with a deeply species and any threats faced by the and Dale Cross filed a complaint in notched lower lip. They have dark species; (3) provides information Federal District Court alleging that our brown to black backs and brassy sides regarding the status of the species over initial finding on the petition to delist that fade to yellow or white on the belly. all or a significant portion of its range; the Lost River and shortnose suckers They are native to the Lost River and and (4) is accompanied by appropriate was arbitrary and capricious and upper Klamath River systems in Oregon supporting documentation in the form violated the Act (Moden v. U.S. Fish and California where they have adapted of bibliographic references, reprints of and Wildlife Service, 281 F. Supp 2d to lake living (Moyle 2002, p. 199). pertinent publications, copies of reports 1193 (D. Or 2003)). On September 3, Adult and juvenile Lost River suckers or letters from authorities, and maps (50 2003, the court ruled that our finding live in lakes where they feed on benthic CFR 424.14(b)(2)). If we find that was arbitrary and capricious because it organisms and material. While the fish substantial information was presented, reached unexplained conclusions not can be found throughout the reservoirs we are required to promptly commence supported by the administrative record. they inhabit, they appear to prefer a review of the status of the species and The court remanded the 90-day finding publish the results of that status review shorelines with emergent vegetation that and ordered us to either reissue the can provide cover from predators and in a 12-month finding. finding with further explanation or The factors for listing, delisting, or invertebrate food (Moyle 2002, pp. 199– proceed to a status review. Consistent 200). reclassifying species are provided at 50 with the court’s order, the Service made CFR 424.11. We may delist a species Lost River suckers grow rapidly in a new finding, clarifying our analysis as their first 5 to 6 years, reaching sexual only if the best scientific and well as addressing additional comments commercial data available substantiate maturity sometime between 5 and 14 made by the court and the petitioners. years of age, with most maturing at 9 that it is neither endangered nor The new 90-day finding was published threatened. Delisting may be warranted years (Buettner and Scoppettone 1990, on July 21, 2004, stating again that we p. 35). The majority of Lost River sucker as a result of: (1) Extinction; (2) found that the petition did not present recovery; or (3) a determination that that spawning occurs from late February to substantial information that delisting early May in the larger tributaries of the original data used for classification the Lost River and shortnose suckers of the species as endangered or inhabited lakes. River spawning habitat may be warranted (69 FR 43554). That is riffles or runs with gravel or cobble threatened were in error. Federal Register notice also initiated 5- We received a petition dated January substrate, moderate flows, and depths of year status reviews of the Lost River and 13, 2009, from Mr. James L. Buchal 21–128 centimeters (cm). Some Lost shortnose suckers under section requesting that the Lost River sucker River suckers have been noted to spawn 4(c)(2)(A) of the Act to consider any and the shortnose sucker be removed in lakes, particularly at springs new information that had become from the List. The submission clearly occurring along the shorelines. Females available. The 5-year reviews for the two identified itself as a petition and are highly fecund (102,000–235,000 eggs suckers were completed and signed on included the requisite identification each) and spawn with numerous males. July 19, 2007. The review for the Lost information of the petitioner, as A Lost River sucker can spawn multiple River sucker recommended downlisting required in 50 CFR 424.14(a). This times during its life. It is unknown the species from endangered to notice constitutes our 90-day finding on whether an individual fish will spawn threatened, and the review for the the petition. multiple times in a single year or an shortnose sucker recommended that the individual will spawn every year (NRC Previous Federal Action species remain classified as endangered. 2004, p. 196). On July 18, 1988, we listed the Lost Shortly before the 5-year reviews for Shortnose sucker. Shortnose suckers River sucker and shortnose sucker as the two suckers were published in July, are distinguished by their large heads endangered under the Act (53 FR 2007, Walt Moden, Merle Carpenter, with oblique, terminal mouths with thin 27130). On December 1, 1994, we Charles Whitlatch, and John Blair filed but fleshy lips. The lower lips are proposed critical habitat for Lost River suit in Federal District Court seeking to deeply notched. They are dark on their sucker and shortnose sucker (59 FR have the reviews completed ‘‘by a date back and sides and silvery or white on 61744); that proposal was never certain’’ (Moden et al. v. U.S. Fish and the belly. They can grow to about 50 cm, finalized. Wildlife Service, Case No. 07–799, D. but growth is variable among A previous petition to delist the Lost Or.). The court dismissed that case after individuals. Shortnose suckers have River sucker and the shortnose sucker, publication of the reviews. In a lawsuit been recorded to live as long as 33 years dated September 12, 2001, was filed on February 21, 2008, the same (Moyle 2002, p. 203). submitted by Mr. Richard A. Gierak, plaintiffs challenged the adequacy of the Adult and juvenile shortnose suckers representing Interactive Citizens United. two sucker reviews (Moden et al. v. U.S. prefer shallow, turbid, and highly Three other similar petitions were Fish and Wildlife Service, Case No. 08– productive lakes that are cool, but not treated as comments on Mr. Gierak’s 214, D. Or.), and sought to have them set cold, in summer (generally 15 to 25 °C), petition because they were considered aside. The Service moved to dismiss the have adequate dissolved oxygen (DO) equivalent to Mr. Gierak’s petition. complaint. On October 27, 2008, the (above 4 milligrams per liter (mg/l)), and

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are moderately alkaline (Moyle 2002, p. Evaluation of the Petition section 4(b)(3)(A) of the Act is limited 203). Section 4 of the Act and its to the delisting of the two species. The Shortnose suckers grow rapidly in implementing regulations (50 CFR part recommendations contained in the 5- their first 5 years, reaching sexual 424) set forth the procedures for adding year reviews are based on an analysis of maturity sometime between years 4 and species to or removing species from the the five factors described in section 6. The majority of shortnose sucker Federal Lists of Endangered and 4(a)(1) of the Act. The petition does not spawning occurs from early April to Threatened Wildlife and Plants. A include any discussion of how the 5- early May in the larger tributaries of species may be determined to be an year reviews may be in error, nor does inhabited lakes. River spawning habitat endangered or threatened species due to the petition provide any new is riffles or runs with gravel or cobble one or more of the five factors described information regarding the status of substrate, moderate flows, and depths of in section 4(a)(1) of the Act: (A) Present either species over all or a significant 11 to 130 cm. Historically, shortnose or threatened destruction, modification, portion of their respective ranges. The 2008 biological opinion for the suckers have been noted to spawn in or curtailment of habitat or range; (B) effects of the Klamath Project on Lost lakes, particularly at springs occurring overutilization for commercial, along the shorelines (Moyle 2002, p. River and shortnose suckers recreational, scientific, or educational incorporated some new information 204), although currently few shortnose purposes; (C) disease or predation; (D) suckers spawn along shorelines (NRC regarding water quality and habitat inadequacy of existing regulatory conditions in Upper Klamath Lake that 2004, p. 194). A shortnose sucker can mechanisms; or (E) other natural or spawn multiple times during its life. It has become available since the 5-year manmade factors affecting its continued reviews were completed in 2007. In that is unknown whether an individual fish existence. In making this finding, we will spawn multiple times in a single biological opinion, the Service evaluated information presented in the concluded that lake levels in Upper year or an individual will spawn every petition, its supporting information, and year (NRC 2004, p. 196). Klamath Lake, as affected by Klamath other information available in our files Project operations, did not have a Distribution in the context of the five factors listed measurable effect on water quality. The above to determine whether the petition At the time of listing, the Lost River Service found that the habitat presented substantial information conditions in Upper Klamath Lake had sucker and the shortnose sucker were indicating that delisting the species reported from Upper Klamath Lake and improved as a result of restoration under the Act may be warranted. efforts in the Upper Klamath Lake its tributaries (Klamath County, The petitioner requests that we watershed, especially at the mouth of Oregon); from the Lost River (Klamath remove the Lost River and shortnose the Williamson River. However, the County, Oregon, and Modoc and suckers from the List. The information Service’s analysis concluded that the Siskiyou Counties, California) and Clear the petitioner cites to support his claim Lost River and shortnose suckers in Lake (Modoc County, California); from included: (1) The completed 5-year Upper Klamath Lake were still the Klamath River above Keno (Klamath reviews (incorporated by reference); (2) experiencing limited recruitment and County, Oregon); and in one or more of comments of Dave Vogel, Natural adult survival rates. Therefore, the new the Klamath River reservoirs below Resource Scientists, Inc., for the 5-Year information incorporated in the 2008 Keno (Klamath County, Oregon, and Status Review on the Endangered Lost biological opinion does not present Siskiyou County, California) (53 FR River and Shortnose Suckers substantial information or analyses that 27130). The known geographic range of Independent Scientific Review Panel are contrary to the conclusions reached these suckers has not substantially (incorporated by reference and included in the 5-year reviews for each species changed since listing. with the petition); (3) the administrative (e.g., a recommendation to downlist to Only one previously unreported Lost records for the status reviews threatened the Lost River sucker and no River sucker population has been found (incorporated by reference); (4) the status change for the shortnose sucker). since listing. This population of a few biological opinions on the Klamath Therefore, we find the petition and hundred adults occurs in the Tule Lake Project operations (incorporated by information readily available in our files sumps at the terminus of the Lost River reference); and (5) 2003 court does not present substantial information (Siskiyou County, California) proceedings and administrative records indicating that delisting the Lost River (Scoppettone et al. 1995, p. 37). Two (incorporated by reference). Documents sucker or shortnose sucker across all or previously unreported shortnose sucker included in items 2–5 listed above were a significant portion of their ranges may populations have been found since available in Service files at the time we be warranted at this time due to one or listing. First, a population of a few conducted the 5-year reviews. more of the five factors described in hundred adults occurs in the Tule Lake The petition relies on Mr. Vogel’s section 4(a)(1) of the Act. sumps at the terminus of the Lost River document and other information (Siskiyou County, California) available in Service files at the time we Finding (Scoppettone et al. 1995, p. 37). Second, conducted the 5-year reviews. We We have reviewed the petition and shortnose suckers are now known to considered this information in the supporting information provided with occur in Gerber Reservoir (Klamath course of the 5-year review analysis. the petition under 50 CFR 424.14(b)(2) County Oregon), an area which was The petition also relies on the 5-year and the Act. Our review indicates that proposed as critical habitat in 1994 (59 reviews themselves, which recommend the fundamental argument for delisting FR 61744). New genetics information that neither the Lost River nor the presented in the petition is based on: (1) casts some doubt on whether these fish shortnose sucker be delisted at this The completed 5-year reviews in Gerber Reservoir and Clear Lake are time. The 5-year review did recommend (incorporated by -–Year Status Review actually shortnose suckers (ISRP in litt. that the Lost River sucker be downlisted on the Endangered Lost River and 2005, pp. 19–21; Tranah and May 2006, from endangered to threatened. Shortnose Suckers Independent p. 312). Until that information can be However, the petition at issue here Scientific Review Panel (incorporated further evaluated, we continue to sought only complete delisting. It did by reference and included with the assume that these fish are shortnose not request downlisting, therefore the petition); (3) the administrative records suckers. petitioned action for the purposes of for the status reviews (incorporated by

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reference); (4) the biological opinions on threatened and therefore, should be recommendation in the 5-year review, the Klamath Project operations removed from the List. The 2008 once our limited resources and (incorporated by reference); and (5) biological opinion on the Klamath competing priorities allow. We 2003 court proceedings and Project operations incorporated new encourage interested parties to continue administrative records (incorporated by information regarding improved habitat to gather and provide data that will reference). conditions in Upper Klamath Lake. assist with the conservation of the Lost The 5-year review for each species However, the biological opinion River sucker and shortnose sucker. analyzed all scientific and commercial concluded that the Lost River and information available at the time, shortnose suckers were still References Cited including the documents listed in items experiencing limited recruitment and A complete list of all references cited 2–5 above. The recommendations of the adult survival rates. This new in this document is available, upon Service based on these analyses was that information does not present substantial request, from the Klamath Falls Fish the Lost River sucker be downlisted information or analyses that are contrary and Wildlife Office (see ADDRESSES). from endangered to threatened and that to the conclusions reached in the 5-year the shortnose sucker remain listed as review for each species (e.g., Author endangered. The petitioner claims that recommending downlisting to ‘‘the original listing was a mistake, and threatened for the Lost River sucker and The primary authors of this notice are these fish are not experiencing any risk no status change for the shortnose staff members of Klamath Falls Fish and of extinction sufficient to invoke the sucker). Wildlife Office (see ADDRESSES). Endangered Species Act’’ (Buchal 2009, Therefore, we find that the petition Authority p. 2). However, the petitioner does not and available information readily provide any additional substantive available in our files do not present The authority for this action is the discussion, data, citation, or other substantial information indicating that Endangered Species Act of 1973, as information or rationale to explain how delisting the Lost River sucker or the amended (16 U.S.C. 1531 et seq.). the documents provided and shortnose sucker across all or a Dated: June 18, 2009. incorporated by reference suggest that significant portion of their ranges may the listing was in error or that the Lost be warranted at this time. We do, Marvin E. Moriarty, River sucker or shortnose sucker no however, intend to develop a proposed Acting Director, Fish and Wildlife Service. longer meets the definition of rule to downlist the Lost River sucker to [FR Doc. E9–15364 Filed 6–26–09; 8:45 am] endangered or the definition of threatened, pursuant to the BILLING CODE 4310–55–P

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